seems to hold this class of persons to the same rigid responsibility with all other persons who make injurious publications. And our Code, in this respect, appears to be in consonance with the legislation of (to say the least), two of the most enlightened and liberal States of the Union.
The Legislature of the State of New York, in the year 1854, enacted a statute from which ours is framed, as follows: "No reporter, editor, or proprietor of any newspaper, shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper, of any judicial, legislative, or other public official proceedings; or of any statement, speech, argument or debate in the course of the same, except upon actual proof of malice in making such reports, which shall in no case be implied from the fact of publication. Section 2. Nothing in the preceding section contained shall be so construed as to protect any such reporter, editor or proprietor from an action or indictment for auy libelous comments or remarks superadded to, and interspersed or connected with such report." (See our section 317.)
The Penal Code of California adopted as late as 1872, on the subject of libel, is almost verbatim the same as ours. (See Cal. Penal Code, § 249 to 257, inclusive.)
"It is no defense," (says Judge Cooley — Const. Lim., 455,) "that they" — injurious communications or libels "have been copied with or without comment from another paper; or that the source of the information was stated at the time of the publication; or that the publication was made in the paper without the knowledge of the proprietor, as an advertisement or otherwise; or that it consists in a criticism on the course and character of a candidate for public office."
A criticism is one thing, and a libel is another. A comment, or judgment, passed or expressed on acts done, or actual conduct, is far different from a false aspersion or a malicious defamation. Criticism upon public men or officers, their actions, character and motives, is not only recognized as legitimate, but large latitude and great freedom of expression permitted, so long as good faith inspires the publication, and malicious injury to reputation avoided. There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, or those who may present themselves for public positions. Through the
